This is Richard Bennett’s second report to the UN’s Human Rights Council and is bleaker than his first,  with just glimpses of anything positive. It follows a visit by Bennett to Afghanistan in October 2022, during which he met government officials – whom he thanks for their cooperation – human rights defenders, legal professionals, women’s groups, journalists, businesswomen, teachers, clerics, representatives of minority groups, the UN, NGOs and diplomats, and visited Kabul, Bamyan and Panjshir. He will present his report to the UN Human Rights Council today, 6 March 2023.
What is in the report?
Bennett’s description of human rights in Afghanistan is of a crisis worsening, of the Islamic Emirate blocking the expression of fundamental freedoms – to assembly, free speech, and the right to life, and with policies “aimed at suppressing communities… women in particular.” Inclusiveness, he reported, is “negligible; there is very little tolerance for difference, and none for dissent.” He also criticised the international powers for how their policies contribute to the harm being done to Afghans’ economic rights and right to life. Even so, most of Bennett’s conclusions are directed at the Islamic Emirate. He assessed the various categories of rights in turn (see full report here).
Women and girls
The Special Rapporteur listed the many ways the Taleban are restricting the rights and freedoms of women and girls: banning them from higher education (adding to the ban on secondary schooling), “restrictions in their movement, attire, employment options, ability to seek public office or perform public roles and access to public spaces.” He said that instead of “taking steps to eliminate discrimination against women” and honouring the Convention on the Elimination of All Forms of Discrimination against Women, to which Afghanistan is a state party, the Taleban authorities are “flagrantly contravening it” and normalising discrimination. By punishing the male relatives of women they consider to be breaking laws and norms, the Taleban “pit men against women, take away the agency of women and girls, and further normalise discrimination and violence against them.”
He noted, “with profound concern,” the rise in sexual and gender-based violence against women and girls, including “report of young women found dead, with indications of having been sexually violated.” He said such violence was occurring “with impunity and with minimal support for victims.” He cited the high number of “unnatural deaths of women and children” taking place in this environment and how restrictions, coupled with the economic and humanitarian crisis, have resulted in forced and child marriage, especially among teenage girls denied an education, widespread reports of depression and suicide. Bennett also noted:
Human rights defenders, who peacefully protest the increased restrictions on women and girls, are at heightened risk and have been increasingly beaten and arrested. The intention is clearly not only to punish them for protesting, but also to deter others from protesting.
The theme of gender-based discrimination, exclusion and harm runs through this report, appearing in almost every section – economic rights, rule of law, fundamental freedoms, and the rights of disabled people. It also featured in Bennett’s welcoming of the resumption of the International Criminal Court’s (ICC) investigation into war crimes and crimes against humanity in Afghanistan that have allegedly occurred since May 2003.  The Special Rapporteur encouraged the ICC prosecutor to “take note of the unprecedented deterioration of women’s rights” and “consider the crime of gender persecution.” It is an indication of just how serious he believes the stripping of rights and freedoms of Afghan women and girls is. 
Economic, social and cultural rights
Afghanistan’s economic crisis, Bennett reported, has resulted in “widespread extreme poverty and acute food insecurity, which had severely undermined the public health system and impacted the right to work.” He welcomed the United States’ facilitation of Afghanistan’s central bank acquiring new bank notes, and the UN Security Council exempting humanitarian activities from sanctions. However, he expressed concern about the adverse consequences of various actions from international actors, including blocking the central bank from the international banking system. “Largely due to risk averseness on the part of foreign banks,” the humanitarian exemption, Bennett said, has not been effective in mitigating those consequences, while “the absence of clear guidance on the humanitarian exemption and [due] to its rigid framework” has created difficulties for businesses and international organisations trying to carry out legitimate activities. At the same time, Bennett said he was also disturbed that the Taleban authorities “have not taken all necessary measures to address the dire situation, including meeting fundamental human rights standards, such as reopening girls’ secondary schools and universities.”
Without international assistance, the Special Rapporteur said the Taleban government will be unable to “mobilize sufficient resources to ensure that the Afghan people enjoy economic, social and cultural rights at the minimum base level.” He added that the United Nations has stressed that “this cannot be achieved without female aid workers.”
Bennett noted that two-thirds of Afghan households had reported difficulties in meeting basic food and non-food needs, that healthcare has become unaffordable for many, more children have dropped out of school in order to work, about 700,000 people have lost their jobs since August 2021 and the nature of work itself has deteriorated, with casual work and self-employment, that is poorly paid and unpredictable, on the rise. He is concerned about the “large unmet portion of humanitarian funding required” by Afghanistan. He also noted the “precarious circumstances” facing humanitarian workers with local authorities “routinely interfere[ing] and restrict[ing] their operations, contrary to humanitarian principles, hampering the delivery of life-saving support.” He pointed out that “this dire situation” has been seriously exacerbated by the Taleban’s barring of women from working for NGOs.”
Bennett’s reporting on minority rights covered attacks, forced evictions and political marginalisation. Hazaras, Sikhs, Hindus and other minorities, he said, “have endured historical suffering that has evolved into a form of structural injustice that needs to be addressed, including through transitional justice processes.” He noted minorities’ “low representation in public positions, both at the most senior levels of government (the cabinet has 25 Pashtuns, two Tajiks, two Uzbeks, one Nuristani and no Hazaras) and in the provinces:
Over the past two decades, locals tended to work in provincial administrations in rough proportion to their presence in an area’s ethnic make-up. However, since the Taliban return to power, the ethnic composition of governance structures has been reconfigured, including at the provincial and district levels. In Bamyan, Daikundi and Ghor Provinces, the Taliban has replaced a number of former government employees at the Departments of Justice, Agriculture and Irrigation, Mines and Petroleum and Education, including at Bamyan University and in the municipalities, almost certainly due to their ethnic affiliation.
He also reported that “forces associated with the de facto authorities” have ordered many “Hazaras and other locals” to leave their homes and farms, frequently with only a few days’ notice and without giving them a chance to assert their legal rights to the property.” They included “at least 2,800 Hazara residents [who] were forcibly displaced from 15 villages in Daikundi and Uruzgan Provinces in September 2021 alone.” Community representatives who demanded an investigation were, reported Bennett, arrested. He also reported that on 19 December 2022, the largely Uzbek and Tajik residents of Sar-e Pul Province, who protested against their forced eviction and the seizure of 6,000 jeribs [12,000 hectares] of land in eight villages by the Taleban, were “reportedly threatened with a military response.” He said the authorities responded to his concerns by saying that, in October 2022, based on a decree by the Supreme Leader, “a regulation was issued to prevent land grabbing and that subsequently a commission and a special court were established to implement the decree.”
Bennett also noted threats against and attacks on Hazara Shia and other Shia Muslims, Sikhs and Sufis: between 30 August 2021 to 30 September 2022, he said, there were 22 recorded attacks against civilians, with at least 334 killed and 631 injured. Of those, 16 attacks targeted Hazaras, including three against educational facilities. He notes that in the past, the Islamic State in Khorasan Province (ISKP) has claimed such attacks, although not for the most egregious recent assault, on the Kaaj Educational Centre in Dasht-e Barchi in Kabul on 30 September 2022, which killed 54 people and injured 114. Most victims were girls and young women studying for the university entrance exam. He pointed out that after that attack, it took one hour for ambulances to reach the scene and moreover, that the authorities had reportedly “physically assaulted and humiliated” some family members, denied them access to the site of the attack, and prevented them from transporting victims to hospitals, collecting dead bodies and donating blood. Journalists, he said, were prevented from covering the incident at the site and visiting the hospitals and relatives of the victims were told not to speak to the media.
Bennett said community representatives, fearing such attacks, said they had requested protection from the authorities in vain. They had also had weapons, authorised by the Republic for guarding educational centres, confiscated and licenses not re-issued. The Special Rapporteur acknowledges “the counter-terrorism efforts by the de facto authorities against [ISKP], which indicate that they have the capacity to undertake intelligence and investigative work and should be capable of bringing those they believe responsible to justice through the holding of trials that meet international standards.”
Rule of Law
Bennett noted the absence of any codification of law, or the issuing of standardised procedures or substantive statutes relating to criminal or civil matters, that police, judges or lawyers could follow. With almost all judges appointed under the Republic fired and prosecutors increasingly sidelined, Bennett said that often, judges, who are now largely religious scholars, are acting as both investigators and adjudicators in contravention of fair trial standards.
In practice, it appears that the muftis [mullahs deemed capable of giving rulings, or fatwas, on religious matters] have become even more powerful, being involved in pretrial and trial processes, including investigations and the provision of advice on punishment, with judges mainly following their advice. Alarmingly, there are reports that it is common for alleged perpetrators to be detained, sentenced and punished by the police and other security agencies all on the same day, without any semblance of due process or judicial review. There have also been allegations of bribes.
Given that court officials are all men, Bennett says women’s access to justice is now severely restricted. They generally need to be accompanied by a man in court, and their testimony may not be allowed at all or given less weight than a man’s.
Bennett said he is deeply concerned about the “rapidly shrinking civic space” in Afghanistan. Journalists, he said, have increasingly been “subject to surveillance, intimidation, threats, violence, arrest and detention” and are resorting to self-censorship to try to protect themselves from the authorities. He said members of civil society have reported increased limitations and surveillance of their activities by the authorities, and human rights defenders have been “subjected to intimidation, including by phone calls, visits to their homes, physical and verbal attacks and arbitrary arrest, which have created a climate of fear and sense of desperation.” He said the authorities had raided several civil society organisations, he reported, demanding the names and contact details of the staff and associated individuals, sometimes including family members, and added:
[The de facto authorities] are increasingly using bureaucratic mechanisms to control civil society organizations. Their requests are incoherent, inconsistent and difficult to interpret. Disclosure requirements have been noted as a major obstacle for several civil society organizations which are required to re-register at the de facto Ministry of Economy.
Bennett noted the extra pressure women are under, with female human rights defenders at particularly high risk of harassment. He said the UN, international NGOs and civil society organisations had all expressed concern to him about their female staff being harassed by the authorities. He also reported an increase in the arrests of humanitarian workers, from 3 in 2020 to 76 in the first ten months of 2022.
Bennett said he is alarmed by Taleban policy towards protesters, the banning of protests, use of excessive force to disperse those who do demonstrate, deployment of arbitrary arrest and detention, abusive interrogations, denial of access to lawyers and other due process rights and coerced confessions. Again, he expressed special concerns for women protesters, who “have been subjected to threats, intimidation, arrest and ill-treatment while in detention.”
Bennett is concerned about the ongoing clashes between Taleban and armed opposition forces in Panjshir and other provinces from where he had received “credible reports and documents” regarding a whole host of violations of the laws of war and human rights by government forces, including:
- Torture, arbitrary arrest and disappearance of individuals perceived to be affiliated with the National Resistance Front, and extrajudicial executions of captured fighters;
- Heavy suppression of communities and an information blackout;
- The routine subjection of civilians considered by the Taleban to be associated with the National Resistance Front to house-to-house searches, arbitrary arrest and detention, extrajudicial killings, torture and displacement.
He also reported multiple sources describing Taleban forces looting gold and cash from people’s homes and reports of forced marriages, including of children, to Taleban fighters in the Khawak area of Paryan District.
Bennett also reported that the targeted and revenge killings of former members of the Afghan security forces and prosecutors continue, despite the 2021 amnesty given by the Islamic Emirate’s Supreme Leader. He said he believed “these killings only fuel tensions and animosity within communities and may hamper reconciliation efforts in the future.” He renewed his call for the amnesty to be enforced and for those who break it to be prosecuted.
Asked what he hoped to achieve from this and other reporting, Bennett told AAN he was mandated to publicly report on the developing human rights situation and to make recommendations. Beyond that, he said:
I want Afghans to feel that an independent official of the UN is monitoring the human rights situation diligently and reporting publicly, expressing concerns about the situation and the violations they’re experiencing. I want others to pick the report up and use it – I want it to be useful. I want the Taleban to take note of it. Even if they don’t like or agree with it, I want them to know someone is watching and to debate the issues with me, so that a dialogue takes place. And I’d like the recommendations to be considered, even better implemented, but at least considered.
Those recommendations are largely to the Taleban, whom he called on to recognise the equality of men and women, immediately restore equal access to education, ensure women are represented in the judiciary, government and commissions, and immediately restore the right of women to work in NGOs and other organisations. On economic rights, he wants the Taleban to take steps to meet the requirements that would allow Afghanistan’s assets to be unfrozen and to refrain from interfering in humanitarian operations. He has called on the authorities to ensure representation for minorities, support a free media and “immediately and unconditionally” release all those detained for exercising their rights to freedom of expression.
As to ICC member states and the ‘international community’, he wants them to ensure the situation in Afghanistan is “central to foreign policy, bearing in mind their responsibilities for the human rights and well-being of the population and the regional and global implications of failing to protect human rights in Afghanistan, especially those of women and girls and minorities.” He calls on other countries to increase humanitarian funding, provide clear guidance to end the “overcompliance with sanctions by financial institutions” and support international investigation and accountability mechanisms.
On 7 October 2022, the Human Rights Council renewed Bennett’s mandate as Special Rapporteur for a further year (Resolution 51/20). The Council also added a significant new responsibility, “to document and preserve information relating to human rights violations and abuses.”  This, in itself, looked like a challenge to impunity, a signal to perpetrators that their actions will be recorded and that there could be consequences.
You can read the full report: Situation of human rights in Afghanistan – Report of the Special Rapporteur on the situation of human rights in Afghanistan, Richard Bennett here.
Edited by Roxanna Shapour
|The Special Rapporteur’s first report was published in September 2022 (see AAN analysis here).
|The ICC’s investigation is into the war crimes and crimes against humanity which have taken place in relation in Afghanistan since 1 May 2003, when Afghanistan became an ICC member state, and July 2002 for international crimes allegedly committed in Poland, Lithuania and Romania, as part of the Afghanistan conflict nexus: those countries, which joined the ICC on that earlier date, and hosted CIA black sites where detainees rendered from Afghanistan were held and allegedly suffered the crimes of torture, cruel treatment, outrages upon their personal dignity and/or rape. For more on this, see AAN’s 2016 report, One Step Closer to War Crime Trials? New ICC report on Afghanistan.
Bennett also said he “trusts that the Court will investigate international crimes by all parties to the conflict in Afghanistan,” an apparent reference to the ICC prosecutor indicating that he wanted to drop investigations into the US military, the CIA and former Afghan government forces, all of whom face. For more on the decision to resume the investigation and questions over who to investigate, see Ehsan Qaane’s report for AAN on this decision, ICC Afghanistan Investigation Re-Authorised: But will it cover the CIA, ISKP and the forces of the Islamic Republic, as well as the Taleban?, published on 11 November 2022.
|On 7 December 2022, the ICC published a document, Policy on the Crime of Gender Persecution, in part, to provide clarity and direction to ICC staff on the application of this crime, as per the Rome Statute.
|The new mandate also gave him a duty to report from a child’s rights perspective.